Privateness Watchdog’s Report on N.S.A. System Fell Brief, Members Say

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WASHINGTON – A member of a civil liberties oversight committee that investigates the country’s security programs on Tuesday criticized an important – but still secret – report by his organization on a National Security Agency surveillance system that portrayed the efforts as shoddy and a missed opportunity become.

The official, Travis LeBlanc, is a Democrat-appointed representative for the five-member agency, the Privacy and Civil Liberties Oversight Board. His criticism – in a newly released, ten-page statement – opened a window into the dispute on the board and gave some clues about the secret study, which was completed in December after more than six years of work.

But other current and former officials dismissed Mr. LeBlanc’s complaints and defended the oversight efforts. Since the underlying report remains secret, it is difficult to judge the competing viewpoints.

The existence of the system called XKeyscore was brought to the public in 2013 as part of the leaks by former secret service employee Edward Snowden. The system enables National Security Agency analysts to query huge repositories of intercepted Internet communications and metadata in search of information.

Most of the wiretapping that XKeyscore provides analysts has been sucked up by the agency under Executive Order 12333, which governs overseas surveillance and wiretapping of overseas communications when crossing domestic territory.

Congress has left this type of national security surveillance largely unregulated, and 12333 rules allow indiscriminate mass gatherings without a warrant. This has long raised privacy and civil liberties concerns, which the government could do with the private messages of Americans that happen to be swept away. (Due to the way the Internet works, domestic messages are sometimes directed overseas.)

The governing body decided in 2014 to conduct a secret study of the activities of Executive Order 12333, which includes an examination of three subjects regulated in this edict. Two participated in the CIA and their issues remain secret. The third concerns the National Security Agency’s XKeyscore system.

The study, which is roughly 56 pages long, was made available to Congressional and executive regulators in secret briefings in March, current and former officials said.

Several points made responsibility for the report difficult. The first is that the board has evolved significantly during the effort.

The scope of the study was chosen when the board was under democratic control. Then some members left and the board did not have a quorum, but its staff continued efforts. The report was finalized when the board was under Republican control.

Another aggravating factor is that the board voted for the report in December with no registered opposition, according to several officials. Mr LeBlanc told his General Counsel the next day to mark him with a no, they said. Mr LeBlanc said he abstained from voting, adding that he was “shocked” that the board was suddenly voting on it.

“I cannot support the XKeyscore system report,” he wrote. “I have serious reservations about the deficiencies in our oversight of the XKeyscore program and significant concerns about the operation of the program.”

Mr. LeBlanc made countless criticisms of the report, presenting the board’s approval as hasty and pointing out loopholes such as the failure to review the use of artificial intelligence in connection with the system, to adequately assess the oversight mechanisms and to question the collecting activities of the National Security Agency under Executive Order 12333, including those who can also access private messages from Americans.

The report, he wrote, “unfortunately reads more like a book report on the XKeyscore program than an independent oversight analysis that addresses key concerns in this evolving technological and legal landscape.”

But Adam Klein, a Republican who served as chairman of the board until he stepped down June 20, defended the effort as valuable.

“This is a detailed, comprehensive report and recommendations on a very complex program,” he said. “It reflects six years of work by board members and several repetitions by board members. It is very factual, substantial and apolitical – the kind of supervision for which the board was created. “

Mr. Klein and other current and former officials also rejected some of Mr. LeBlanc’s complaints.

“The board of directors gathered information and asked tough questions about the location and type of collection,” said Klein. “The board also asked tough questions on many other topics related to XKeyscore, including the compliance and oversight mechanisms that apply to the program.”

However, in an interview, Mr. LeBlanc said that “minimal” information about collection activities made it into the report and no effort was made to analyze it. His unclassified statement, previously reported on by the Washington Post, presents some of the collection activity as problematic but does not provide details.

Mr LeBlanc also criticized the board of directors for failing to investigate episodes in which National Security Agency analysts broke search rules in 2019, including a type of compliance incident classified as “questionable intelligence activity,” which means that he broke the law. Implementing ordinance or other guideline rules.

“Obviously, violations of US law and the known collection or processing of information about US persons are serious compliance issues. However, the former board has not requested specific information, ”he wrote on a line that preceded and followed edited material.

But a U.S. official, speaking on condition of anonymity, described the 2019 episodes of compliance as relatively minor – like a typo in a name being searched resulting in information about the wrong person being retrieved – and said none indicated a systemic problem.

Mr. LeBlanc also complained that the National Security Agency lacked XKeyscore-specific training on privacy and civil liberties to protect Americans. The US official said the agency had already trained analysis on such rules before granting them access to a system, but in response to a recommendation in the report, it conducted a lesson on XKeyscore.

Finally, Mr LeBlanc said in his statement that the board had asked the agency for their legal analysis of privacy and civil liberties, increased by using XKeyscore in 2015. The next year, she received a 13-page memo from 2016 that “looked like the NSA did not produce a written analysis of the legality of XKeyscore until requested by regulators”.

An NSA spokesman said its general counsel “periodically reviews the NSA’s intelligence programs and capabilities to ensure compliance with the law” and has “conducted appropriate legal reviews of the use of XKeyscore.”

A footnote in Mr LeBlanc’s statement stated that the NSA advised the board this year that it had also done “previous legal analysis of XKeyscore” prior to the 2016 memo. But while the board was pressing for access to these “alleged” memos, it wrote, the agency did not provide any.